I
have been asked to speak on the question of “Judicial Functions on Marae”. I
want to be quite clear at the outset.This
will not be a speech about policy.Policy
directions are set by the Government and we are most fortunate to have as a key
speaker at this forum the Minister for Courts, the Hon Georgina te Heuheu.What I can do, as a senior public servant, is to provide you with the
benefit of some of our research, to explain the law as it currently stands, to
fill in some of the historical perspective and discuss some of the practical
issues.

What are Judicial
Functions?

When
we talk about judicial functions it is important to define exactly what
functions are involved.Judicial
functions obviously include the regular sittings of courts.But they may also include such functions as those undertaken by certain
tribunals which have judicial characteristics and by coroners.

Some
History

In
early colonial times, both European settlers and Maori seemed to acknowledge
that each people gave different weight to various behaviors that offended
community norms.Pakeha were
surprised at the stern Maori attitudes to offending wahi tapu, cursing and
adultery.Maori leaders for their
part were astonished that petty theft could lead to a gaol sentence - a form of
punishment they considered barbaric.The
Ngati Tuwharetoa Chief, Te Heuheu Tukino said of petty theft that a great chief
would take no notice.In cases of
more serious offences against property Maori felt that payment of compensation
was an adequate sanction.

It
is noteworthy that in those days there was no attempt to impose the full
complexity of the British judicial system on iwi and hapu.There was a feeling that the wide gulf in values and customs would have
made attempts to impose unmodified English codes on Maori not only imprudent but
also unjust.

Lord
John Russell, Secretary of State for the Colonies, in his dispatch to Hobson
transmitting Letters Patent for the Administration of the Government of New
Zealand as a Separate Colony wrote that

Maori were a people among
whom the arts of government have made some progress; who have established by
their own customs a division and appropriation of the soil,- who are not without
some measure of agricultural skill, and a certain subordination of ranks, with
usages having the character and authority of law.

Russell
instructed Hobson to develop positive declaratory law authorising the executive
to tolerate local customs since

... the analogies of the laws of England,
as administered among Englishmen, whether at
home or
abroad will, in many respects, be bound to fail.

Because
differences were recognised, magistrates in the middle of the 19th
century tended to fine Maori offenders.It
was also common to deal with cases without a formal hearing.This involved securing payment of compensation rather than sentencing.
With the benefit of hind-sight, we can now see that those magistrates were using
techniques which we might today call “diversion” or “restorative
justice”.Four ordinances in 1844
modified the law to accommodate Maori tikanga.Among other things, the Native Exemption Ordinance allowed that, in
criminal cases other than rape or murder, a Maori offender could be released at
large on payment of 20 pounds - to be paid to the victim if the accused did not
appear for trial.A Maori convicted
of theft could avoid gaol on paying four times the value of the goods stolen.These funds could then be used to recompense the victim.

Iwi
and hapu leaders saw to the payment of these fines: However, it is also
noteworthy that Maori offenders who had detached themselves from their hapu to
live on the outskirts of European settlements did not enjoy this possibility.

As
time passed, many settlers resented separate provisions for dealing with Maori
criminal offences, which they regarded as appeasement, reflecting only the
balance of power between the two races.Eventually
Maori were brought step by step under the jurisdiction of unmodified British
law.

But
this was not the end of serious efforts to exercise quasi-judicial functions
within the context of the marae.Some
Maori communities developed runanga (councils) and komiti where Maori leaders
resolved disputes and made rules for their hapu.In 1858 the Government gave a measure of recognition to these
bodies in the Native Districts Regulation Act which authorised runanga - under a
Pakeha chairman - to make by-laws for their area and the Native Circuit Courts
Act which authorised circuit judges to sit with Maori assessors and juries.

Morris
Ormsby 1
has conducted a sample survey of judges’ reports in 1871, 1881 and 1891.In 1871 Richard Woon in Wanganui had completed his first magisterial
visit to the upper Wanganui settlements.One
imagines a considerably more arduous passage than we would have today.He wrote:

“I
am happy to say that a considerable amount of business was got through in a very
satisfactory manner; the litigants and the Natives generally showing every
disposition to conform to the rules of the Court and to abide by its
decisions”

Woon was given the use
of wharenui in which to hold his court at each settlement he visited.He expressed satisfaction at being so well received.

Some
hapu developed their own courts.An
example is contained in the records of a runanga operating in the 1880’s on
Rangiwaea, an island in Tauranga Harbour.The
runanga operated on guidelines set out by King Tawhiao.The following details have been derived by Evelyn Stokes 2
from a minute book from Rangiwaea Marae.

On
22 April 1886 it was agreed by the kaumatua to establish a Komiti Taitamariki
which was given powers to make regulations and see that they were enforced.The chairman was based at Rangiwaea Marae.The komiti appointed a judge (Kaiwhakawa), a policeman (Pirihimana) and a
clerk (Te Karaka). The komiti had power to make judgements, if necessary, in
disciplining young people.It was
decided that it was necessary on most occasions for all members to be present,
especially for trying serious offences.The
kinds of cases over which it had jurisdiction were offences concerned with
people, food and property.

Offences
against the person included assault, ill-treatment of young girls, adultery,
false accusations, taking revenge with violence.Some additional offences included the prohibition on a widow or widower
remarrying too soon after the death of a spouse, and provision of fines for
desertion of a wife, and for bestiality.

Offences
concerning food covered consumption of food or exhausting the supply of food for
people and animals.Offences
against property included theft of possessions, receiving, stealing from food
storage pits and livestock control offences.The Komiti Taitamariki also set out rules for holding their hearings
stipulating that the Komiti would ask questions, having together first agreed
what these should be.Members were
to be dressed appropriately and would fund the cost of the court from their
district. The Komiti Taitamariki seems to have operated at least until 1888.

He TangataOffences Against People

He patu i te tangatastriking a person

He kohuru i nga kotiro ririkiill-treatment of young girls

He puremu adultery

He kanga cursing

He hoko i te tangata trafficking in people

He whakakino ingoacalling names, slander

He haurangi tukino drunken violence

he whakairi kakahu ki te ara

hanging clothes on the roadway,

He whakairi kakahu ki te arahanging clothes on the roadway, ie

on fences in public view

He kararehe whakamate tangata dogs attacking people and causing

injury or death

He whakapae teka false accusations

He tango i te utu whakapahi
taking revenge with violence

He korero teka telling lies

He
TaongaProperty Offences

He taonga i tahaetia i te tangata stealing a person’s possessions

He taonga i ata whakaritea a iclaiming property as one’s own

tupononoa a te he i muri o teknowing it belongs to someone else,

whakaritenga
receiving stolen property

He nama moniindebtedness

He taonga take a he tangata ke claiming property
found bychance

nana i kite

He warewahia e te tangatabreaking into or damaging a
man’s house

He taonga wahia i te kararehe destruction of property by animals

He taonga pau i te kararehe consumption of property by animals

He taonga pau i te ahi a te tangatadestruction of
property by fire

He taonga taha ki roto i nga ruastealing from a food storage pit

He whakaporiro i nga karareheanimals should be
neutered to prevent

ko
tenei te mea ana me poke fighting and injury to other animals

nga
tame tetehi kino o te tame

he
patu i nga karehe

He
parani tahae tenei kupu me animals
must be branded for identification

parani
to kararehe

He keeti i waiho kia tuhera leaving a gate
open so animals can roam

He pokanoa ki te hopu i ngataking
an animal for one’s own use without

karehe ki te eke raneithe owner’s permission

Komiti
Taitamariki Rules for Holding Hearings

1.When the Committee is sitting in judgment they appoint one person to ask
questions.First there will be discussion of the kind of questions.The questions will be agreed by all the Committee. A spokesman for the
Committee will conduct the questioning.

2.The work of the Committee will not begin before 10 o’clock in the
morning or go on after 10 o’clock at night.

3.Members should be properly dressed when attending sessions of the
Committee.

4.Members of the Committee bring money to meet expenses of committee work.

5.Members from each district will collect money and one will act as
treasurer for the Committee’s welfare, to provide food at Committee meetings,
so that all share the expenses of a hui as these meetings are for the benefit of
all.The kohi money is five
shillings.

Elsewhere,
informal sanctions were imposed by elders in a village community, in ways that
represented the continuation of tikanga or custom law.One example, is the institution of whakawa,
or “elders’ court”, which operated into the 1940s at Te Haroto, a
Maori community on the Napier-Taupo Road.In
1997 at Te Haroto Marae the Waitangi Tribunal heard that:

Kaumatua
were looked up to and the young people took notice of their advice.They could be strict too and didn’t stand any mischief. Several of the
witnesses spoke of kaumatua they recalled from their youth and the values that
were instilled into them.

The
whakawa or court of elders must have made a considerable impression on the young
people of those days as they all recalled it and considered it an ordeal for
those called to account.The elders
sat at one end and all the youngsters at the other.The accused had to stand. It was a daunting experience for
both accused and onlookers and made a big impression on young minds.Youthful romances considered unsuitable were an example of the function
of the whakawa.By the time of the
Second World War the practice was dying out.

Kahauriki
Bartholomew noted that:

All
discussions took place on the marae or in Piriwiritua.Everyone (adults) spoke and aired their opinion on the current raruraru
[contentious issue]. The problem was shared by everyone.Solutions were agreed upon by everyone and if a person faced punishment,
he or she was ostracised for a period of time.

The
elders’ court disappeared after the 1940s due to the depopulation of the Te
Haroto area.Many Ngati Hineuru
families joined the post war urban migration of rural Maori in search of jobs.The young people grew up in the city and only returned occasionally to Te
Haroto.The ties that bound the
community together were loosened and stretched, though not entirely broken.As for many hapu, one of the consequences of urban migration was loss of
local tikanga, including the whakawa, which had evolved in the context of a
relatively isolated rural community.

The
Present

I
would now like to turn to the present day.As you all know the Waitangi Tribunal often meets on marae.It has a membership of 16, both Maori and non-Maori.Its members include people familiar with Maori custom and tradition.That expertise has proved invaluable.

Where
the Tribunal decides to hear claimant evidence on marae the hearing is held in
the ancestral meeting house of the claimants.Traditional greetings are invariably exchanged and the process is a
fusion of Maori ritual and judicial procedure.The fusion is generally successful.

Hearings
commence and end with karakia in accordance with Maori tradition and the Maori
language is used extensively in kaumatua or traditional evidence.The advantage in marae hearings and the use of Maori language ensures
that claimants and particularly elders feel comfortable with the process.In a traditional setting where at least one member of the panel is also
an elder of high status, the evidence takes on an eloquence and cadence not
found in an ordinary forum or courtroom.

Such
hearings can be a long drawn-out affair.However,
the Tribunal will often seek to focus the hearing process as much as possible
through devices such as pre-hearings conferences, particularisation of claim,
commissioning its own research and negotiating statements of issues with all
parties.These techniques help to
reduce hearing time and maximise preparation time.

Proceedings
are held on the marae because the Tribunal is of the firm opinion that on their
home territory Maori people are better able to express their feelings and make
their concerns known and that as a result of this procedure the Tribunal will be
able to reach the real heart of matters.This
is often not so achievable in a building such as a courthouse or in proceedings
conducted in the same manner as a court hearing.

It
can be seen, therefore, that one underlying rationale, as far as the Tribunal is
concerned, is that hearings should be in locations which will best enable it to
undertake its functions effectively and efficiently.

The
Tribunal observes the protocol of the particular marae and it is usual practice
that the tangata whenua pass the proceedings over to the Tribunal for the day
with the kawa being returned to them prior to the close of each day or at the
close of the hearing.The Tribunal
is able to recognise tikanga with respect to many matters with the conduct of
its hearings.

The
requisite features of the Tribunal’s success appear to be:

·that at each sitting the
members of the Tribunal include Maori elders

·the fusion of Maori ritual and
judicial procedure

·the use of karakia

·the use of the Maori language
and interpreters

·the high regard for Maori
elders

·the use of Maori elders as
advisers to parties

·the observance of kawa and
recognition of tikanga

The
Position of Courts

I
would like to turn to the legal position governing the possibility for District
Courts to sit on marae. There is legislative authority giving judges wide
discretion in deciding where to hold a court.The District Courts Act 1947 [section 21(3)] provides that a judge may
hold any special or adjourned sittings for the dispatch of summary criminal
business

in any
... place wheresoever which the [Judge or the Justice or Justices for the

Community
Magistrate or Community Magistrates] constituting the Court deem convenient.

Section
4 provides that

.. a
[Judge] may hold or direct the holding of a particular sitting of a Court at

any
place he deems convenient.

It
seems clear that Judges have the authority to sit on marae if they so wish. We
have been unable to find statistics concerning the number of sittings of a court
on a marae.It is clear from a
number of press reports that such sittings do occur but relatively rarely.Where such sittings are convened it would seem to be for
specific sentencing hearings for individual defendants rather than for the
conduct of a court list or for a trial. Why
is the discretion which judges have been given not exercised more often?There are probably very many reasons as to why most judicial business is
now conducted principally in courtrooms.I
do not intend to go into the realm of policy.But quite apart from policy issues there are administrative and
operational factors that are relevant.

Administrative
and Organisational Issues

There
are several practical issues that would have to be resolved in deciding to hold
a sitting at a marae.These
include:

·logistical issues in servicing
the court

·the additional time demands on
judges in marae sittings

·mechanisms to identify which
cases are appropriate for marae sittings

·criteria for the selection of
cases

To
expand on the logistical issues, it is worth noting that running a court and
meeting the legal standards of procedure that the court requires:

·the recording of proceedings

·security for judges, court
officials and members of the public

·support for victims

·facilities as mundane as
waiting rooms, toilets and kitchens

·access to professional support
and services, and

·public access to the court.

These
facilities could be provided on many marae but the practical issues are not a
simple matter.They would require
prior arrangement and because they are not standard arrangements they impose
greater costs in supporting the court.If
several cases were dealt with at any particular marae sitting some efficiencies
of scale might develop, but proposals to date have tended to be one-off
occasions.

Time
demands are also an issue.Travel
to the marae, the ceremony in welcoming court officials and members of the
public appears to have resulted in proceedings taking more than an hour and in
some instances several hours.

Anyone
who has spent any time in a District Court will know that courts are very busy
places.The administration of
courts is expensive and judicial time is always in demand.Any procedure which slows the operation of the District Court
would rapidly increase the costs of courts administration and reduce the volume
of cases that courts can manage in a reasonable time-frame ultimately to the
detriment of defendants, many of whom would be held in remand custody for longer
periods.The overall costs and the
pressure of court business encourage judges and registrars to make arrangements
for marae sittings in only a few exceptional cases.

There
are insufficient resources to deal with all offences involving Maori offenders
via marae court sittings.Over
22,000 cases each year involve Maori offenders.How would cases be selected?Some
would argue that early interventions in minor cases are the most deserving for
such treatment.Others might argue
that the more serious offences deserve such attention.In the absence of a rationale for case selection, and answers to the
practical problems I have described, it is not surprising that judges and
registrars have been hesitant to exercise the discretion they have under the
Act.

Maori Concerns

Not all of the
constraints on marae sittings are administrative.Indeed some are likely to arise from the concerns of Maori
communities themselves.It has been
relatively easy for the Waitangi Tribunal to reach arrangements with local
communities about the application of tikanga to particular situations.The special functions of the Tribunal facilitate that and the tangata
whenua have a strong interest in the outcome of the Tribunal’s proceedings and
therefore a real incentive to work co-operatively with the Tribunal.But it is likely to be different with court proceedings involving
individual criminal cases. Today most Maori do not live in settlements closely
associated with, or on, their home marae.A
large proportion of Maori are physically dissociated from their hapu and iwi and
the collective interest, responsibilities, controls and authorities are weaker.

Ideally any
marae-oriented sitting would deal with a Maori offender on their home marae -
the marae of their ancestors.Ideally
the victim would also be associated with that marae or hapu.However, today we are seldom presented with the ideal.Offenders and the offences they commit are more often in cities and many
Maori offenders are dissociated from their iwi links.

Moreover, from the Maori
perspective, not any marae will do.Urban
marae are playing a very important role in our communities.However, it remains to be established that there is special value in
dealing with an offender who is associated with a particular marae at a
pan-tribal venue or the marae of a hapu from another iwi.This is a matter on which I am sure there will be different opinions
among Maori.

Also it is a fact that
we have to recognise that perhaps not all marae would welcome regular court
sittings.In He Whaipaanga Hou,
Moana Jackson noted that:

“if
the Maori community is to overcome the cultural deprivation and denigration of
the past and reach out to its disaffected young, the marae must be a center of
that effort.The supportive warmth
and sense of tradition which marks a marae must be made accessible to the young
so that they feel part of it and thus able to begin the slow process of re­establishing
their cultural links.An inability
to speak and understand the language and protocol, the tensions of a generation
gap within Maori society, and the apparent distance of the marae from the
realities of present day life, make this process difficult.It is rendered even more difficult if the marae is also seen to be the
base for a Pakeha court which is already seen to be intimidating, alien and
unworthy of respect. 3

The
fact that court sittings on marae are rare and that there are a range of
unresolved practical issues does not mean that the justice sector has remained
aloof to Maori concerns.There are
two Maori District Court Judges.And
a major step forward was taken when Justice Durie was appointed to the High
Court on 23 October last year.

The
number of Maori law graduates is growing.However
many seem to be attracted to work on Treaty claims and commercial areas rather
than criminal practice.This is understandable but it will be several years before we
have a reasonable number of experienced Maori lawyers from which to draw in
making judicial appointments.Consequently,
in the medium term, the District Court will have mainly Pakeha judges and
lawyers

However,
Sir Douglas Graham, initially in his role as Minister of Justice and more
recently as Attorney-General, has led an overhaul of the appointments procedure
for all judicial appointments clarifying the base of selection and inter alia
designed to promote greater diversity in the pool of applicants.Expressions of interest are now sought by advertisement and nominations
are solicited from a wide range of groups, including Maori organisations
representative of, or working extensively with, lawyers.Selection is on merit assessed against established criteria, including
knowledge of cultural issues and the appreciation of diversity.

Coroners

Coroners
are also judicial officers.Coroners
have the powers, privileges, authorities, and immunities of a District Court
Judge in the exercise of their duties.They
are required by the Coroners Act 1988 to hold an inquest where deaths are
without known cause, appear to be suicide or unnatural or violent.Their duties bring them into contact with a wide range of people at times
of great stress and sadness.Coroners
are aware that there are tensions between the exercise of their duties and the
needs of Maori at times of bereavement.In
the exercise of various duties they are required to consider cultural and
spiritual values - for example in the speedy release of the body as soon as is
possible after death.

Like
district court judges coroners have the authority to set the venue for any
inquest that they hold.The
Coroners Act provides that

The
coroner who is to hold an inquest shall fix a date, time, and place for it, and
shall direct the Commissioner of Police to cause a member of the police to give
notice of the date, time, and place.

Further,
the Act allows coroners to take evidence at times and places other than the
inquest.To the knowledge of a
group of senior coroners, no one has asked for an inquest to be held on a marae
and hence it has never happened.Coroners
are prepared to consider requests of the bereaved in regard to venue, as long as
the inquest can be held in public, but this may not be widely known.Nor may many people know how to make such a request.

The
Law Commission has been asked by the Government to review the legislation
dealing with coroners.This project
includes a specific focus on issue of concern to Maori such as-

·the release of the body

·the relationship between the
bereaved and the body

·sensitive handling of a
deceased and body parts

·taking account of cultural
values such as ensuring that a body is always attended

( in
Maori terms “keeping it warm”).

The
preliminary report will be available for public discussion in early July 1999.The Law Commission will then consider submissions and a final report is
expected in December this year.

I
would also like to mention some of the practical things that are being done to
deal with Maori concerns.

The
differences between Maori and Pakeha have lessened since the two cultures began
to influence each other.Many Maori
customs and the values they express have been modified or abandoned in favour of
Pakeha ideals, for example through the influence of Christianity.But important and subtle differences remain between the two cultures
though these are not widely understood.

There
are several projects working to develop greater knowledge about historical and
contemporary Maori values, particularly as they relate to the justice system.Let me mention three examples.First,
there is the Waikato Maori Law Project at Waikato University, second a small
team in the Ministry of Justice are working to identify the principles of Maori
justice and third a project on customary law is underway in the Law Commission.Their results will make important contributions. Understanding principles
and values is a very important first step.

We
do know that Maori concepts of justice in so far as they affect relations within
the whanau and hapu are based on restorative rather than retributive views of
punishment.Current moves to
introduce restorative practices into the legal system might therefore be seen as
a welcome reflection of Maori values in the law.

What Will Work?

Up
to this point we have seen that judges have authority to convene courts on
marae.It is administratively
possible though costly and a number of practical and philosophical barriers,
perhaps on both sides, would need to be overcome if judges were to exercise
judicial functions on marae. But even in mainstream court, efforts are being
made to allow the values of the marae to be included in the exercise of judicial
functions.These are issues that
the justice sector has been working on in recent years and some progress is
being made.

Greater Court Sensitivity

One
area in which considerable progress has been made in the past ten years is
increasing the sensitivity of the courts to Maori issues and practices.The Maori Language Act established Te Reo as an official language that
may be used in courts, and courts have increasingly been prepared to arrange
facilities for translation.Judges
have also created opportunities for proceedings to begin with karakia - a
significant advance.Another
advance, which has taken root more slowly, is the provision in section 16 of the
Criminal Justice Act which provides for submissions from whanau and others on
the ethnic and cultural background of an offender to be put before the court for
sentencing.This provision was
intended to give judges information on issues and concerns specific to Maori and
other ethnic groups.The Ministry
of Justice has been concerned for some time at the lack of information about the
use of this section.Accordingly a
major research project was started last year to evaluate the use of section 16.It is important that we understand more clearly whether and how this has
made positive contributions, and to identify any further potential to inform
sentencing judges about cultural and ethnic issues relevant to an offender.The results of this research will be available next year.

A
further important step is that all judges have completed training in cultural
sensitivity and Maori issues.Some
have been involved in marae-based training. Many judges have been supportive of
restorative and community justice initiatives, which many consider a way that
Maori values can be given greater expression. I believe the judiciary are making
real steps forward and I have full confidence in the leadership that our new
Chief Justice Sian Elias will bring to this area.

Greater Recourse to
Advice from Maori

In
the absence of Maori judges, other means to achieve Maori input may be
necessary.Several courts have
established links with local kaumatua - many of whom work unsparingly as
community workers in and around courts. In this regard I want to acknowledge the
important step forward that was made with the institution of Maatua Whangai.They make a significant contribution in many courts across the country
and are a source of much practical advice for judges, lawyers and other
professionals in the court.

Community Magistrates

Community
magistrates are another project intended, among other purposes, to introduce
greater Maori participation into justice.These
have been introduced in the Waikato and Bay of Plenty initially.A review will be carried out after approximately 18 months in order to
determine the basis on which a national programme will be implemented.

Community
magistrates sit in the District Courts, usually in pairs. They have been
selected from the wider community served by the particular District Court to
increase community involvement in the justice system.Of the 16 community magistrates appointed so far, five are
Maori.That is over 30%.

Community
magistrates are paid judicial officers with powers to sentence persons who have
been found guilty in the District Court, or who have pleaded guilty to certain
summary offences.Examples of
offences in this category are wilful damage, offensive behaviour or trespassing.Community magistrates also have the power to direct enforcement against
fines-defaulters.

Community
magistrates do not have the power to imprison offenders but they may impose a
range of other sentences, such as reparation, community-based sentences (such as
periodic detention or community service), disqualification from driving, and
fines.The maximum fine a community
magistrate is able to impose is $7,500.

The
requirement for community magistrates to have an understanding of the Treaty of
Waitangi and of the needs and aspirations of the Maori people was just one
criterion on which selection was made.It
is in line with Government policy on the status of the Treaty as a founding
document and of Maori as tangata whenua.The selection criteria approved by the Government made it
clear that our courts do not operate in a social vacuum, but should know the
values of the community they serve.In
the court system, where a significant percentage of defendants in criminal cases
are Maori, this sort of requirement has particular relevance.

Te Awhina - Community Panel Diversion

Recent research involving the Ministry of Justice is an evaluation of the Te
Awhina Pilot Pre-trial Diversion project at Hoani Waititi Marae in Auckland.Te Awhina is one of three pilots funded by the Crime Prevention Unit to
divert adult offenders appearing before the criminal courts. The process at Te
Awhina is arranged as a result of a referral by the court. A panel of nominated
members of the marae community meets with the offender and develops a plan in
response to the offending.The
family/whanau of the offender are encouraged to attend.The focus of the panel meeting is first and foremost one of confrontation
the emphasis is on the responsibility of the offender for his or her offending
and a recognition of the consequences that that offending has had for them,
their victims, their family and whanau, and the Maori community.The plan will include tasks that allow the offender to make good the
damage they have done to victims, whanau and the Maori community.Another focus is on reintegration - restoring the connections of the
offender with their family, whanau and with the community, particularly the
Maori community in an urban setting. The plans typically involve:

·responses to victims

·gaining employment or
completing training

·participation in tikanga
programmes and activities

·therapeutic and preventive
interventions where these are appropriate.

In
many cases the action plan serves the purpose of a community sentence.In other cases it also avoids a conviction and a court record.Qualitative and quantitative evaluations of this programme have recently
been completed including matched sample analysis of re-offending rates and
costs.Although the follow-up
period is limited to 12 months, the results have high statistical reliability.Community panel conviction cases were re-convicted at 12 months at a
statistically lower rate than offenders dealt with by conventional courts - 33%
for Te Awhina participants compared with 47% for matched controls.What is more, those who re-convicted re-offended less seriously than
matched controls.

Most
offenders found the experience positive and more meaningful than it would have
been in other settings because it happened on the marae and in the meeting house
where they were in the presence of their ancestors.Despite the panel often being seen as intimidating and demanding, their
decisions were accepted.Te Whanau
Awhina provides an example of an indigenous justice model.It follows customary practice in:

·the manner and kaupapa of the
community panel meeting,

·the emphasis on the importance
of family and whanau being involved in the decisions and informed of the
outcomes,

·the development of action
plans that aim to make the offender accountable to family and whanau and the
Maori community as well as to victims; and

·the focus on reintegration of
the offender into the wider community through measures to improve a variety of
relevant skills, as well as into the Maori community through involvement in
marae activities and tikanga programmes.

The
approach at Te Awhina gains strength from being able to provide many suitable
community-based alternatives to corrections programmes either on the marae or
through referral to Te Whanau O Waipareira Trust.Its location on a marae and its embeddedness in tikanga
increases its mana and effectiveness for Maori participants.

Interventions
that demonstrably reduce re-offending are rare enough but even rarer are quality
evaluations of indigenous justice programmes.Analysis shows that the project produced significant savings
to the criminal justice system conservatively estimated as $193,096.The programme cost $83,000 - $60,000 being the grant from the Crime
Prevention Unit and $23,000 contributed in service by the Hoani Wiatiti Marae
and Te Whanau O Waipareira Trust.In
other words, the investment returned over twice the contribution of the agency
and the Maori community or over three times the contribution of the cost to the
criminal justice system.In
addition, considerable financial savings accrued from the prevention of
re-offending and the reduction in the seriousness of offending.

It
appears that the manner in which the panels exercise judicial functions and the
regard in which they are held by Maori offenders and elders of their community,
contribute to the success of the programme.Not only in reducing offending but also in delivering outcomes that were
regarded as just and appropriate by the wider community, judges and the
offenders.

Conclusion

Reductions
in offending and improved quality of justice are possible from greater Maori
participation in the administration of justice.Some progress is being made.Marae court sittings are possible and are permitted but they are a
rarity. In any case, it may be in that, in the medium term, marae sittings by
themselves will not be completely effective or meet the needs of Maori.

The
experiences of the past and of the Waitangi Tribunal point to the importance of
involving senior Maori both at the bar as defence counsel and on the bench.Where the judiciary are able to convene marae sittings it will be
important that they are guided by Maori elders to ensure the appropriate
inclusion of tikanga, the observance of important kawa and to mitigate the risks
to victims, offenders and the marae.

Other
innovative ways of delivering judicial functions may also hold promise of
achieving meaningful Maori participation and perhaps, in the long run, even more
useful than sittings on marae.They
include restorative justice models and community magistrates.Both are relatively new initiatives in the formal justice system.It is important that they continue to receive the support of the legal
and Maori communities.If not, they
will fail and we will be the poorer for it.

Interestingly,
with the advent of restorative justice as a public policy issue we are in a
period where Pakeha views and Maori views are moving closer together and this
provides some hope for the future.